Delhi District Court
Bses Rajdhani Power Ltd. vs Ramji Lal & Etc. on 28 July, 2011
1
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. 764/07
PS Okhla Industrial Area, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Ltd. Versus Ramji Lal & etc.
AMENDED MEMO OF PARTIES
BSES Rajdhani Power Limited
having its registered officer at
BSES Bhawan, Nehru Place,
New Delhi - 110019
and its Corporate, Legal & Enforcement Cell
at Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting Through its Authorised Representative
Sh. Binay Kumar
...Complainant
Versus
Tohfa Ram @ Bhalu,
H.No.13 A, Jogi Mohalla, Tehkhand Village,
Near Railway Line, New Delhi.
...Accused
COMPLAINT INSTITUTION ON : 14.08.2007
JUDGMENT RESERVED ON : 26.07.2011
JUDGMENT PRONOUNCED ON : 28.07.2011
JUDGMENT
1 The complainant company filed the present complaint u/s 135 r/w/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused persons committed an offence punishable u/sec. 135 of the Act and also to determine the civil liability as provided under the provisions of section 154 (5) of the Act. 2 2 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer.
3 The accused were summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 15.09.2007 after recording the presummoning evidence and hearing the arguments on summoning. The accused Tohfa Ram @ Bhalu appeared with his counsel in the court. Vide order dated 28.03.2008 of the Ld. Predecessor court the accused Tohfa Ram @ Bhalu was taken into custody. However, the accused Tohfa Ram @ Bhalu was granted bail on furnishing personal bond in the sum of Rs. 10,000/ with one surety of the like amount vide order dated 29.03.2008. The accused Ramji Lal also appeared and was admitted to bail on furnishing personal bond in the sum of Rs. 10,000/ with one surety of the like amount. Despite opportunity given, the complainant did not pursue the case against the accused Shiv Dayal, therefore, the complaint against the accused Shiv Dayal was dismissed for nonprosecution vide order dated 30.08.2008. The accused Ramji Lal has expired on 22.06.2009. Vide order dated 17.07.2009 of this court, the proceedings against the accused Ramji Lal was abated. Therefore, as per the amended memo of parties, the only accused namely Tohfa Ram @ Bhalu remained to be prosecuted for theft of electricity. Separate notice u/sec. 251 Cr.P.C was framed against the accused Tohfa Ram @ Bhalu to which the accused pleaded not guilty and claimed trial. 4 The complainant company examined Sh. Mohd. Ameen, Trainee Engineer as PW1, Sh. Binay Kumar - Legal Officer & AR as PW2 and 3 Sh. Maneesh Arora - DGM as PW3. The statement of the accused Tohfa Ram @ Bhalu was recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against him. The accused wanted to lead evidence in defence, therefore, the accused was given opportunity to lead evidence in defence. The accused, in his defence evidence, examined Sh. Randheer Kumar S/o Sh. Rameshwar Singh R/o 268, Chhuriya Mohalla, Tehkhand, OkhlaI, New Delhi110020 as DW1.
5 I have heard the Ld. counsel for accused represented by Sh.S.Satya Narayana and prosecution represented by Sh. Rishab Raj Jain, counsel/ deemed P.P and have perused the entire records.
6 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take cognizance of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
''Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:4
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.'' In the case of Vardhman Properties Ltd. Vs BSES Rajdhani Power Ltd. 157 (2009)DLT 636, it was held by the Hon'ble High Court that:
''The special electricity court can take cognizance of the offence u/sec. 135 of the Act without awaiting committal of the case to it by the Magistrate. Therefore, in the instant case when by the order dt. 07.04.2006, the Ld.ASJ took cognizance of the offence and summoned the petitioner for offence u/sec. 135 of the Act, the Ld.ASJ was exercising the powers u/sec. 151 of the Act.'' The Hon'ble High Court of Delhi in its order dated 06.02.2009 passed in Crl. MC 2059/2008 & Crl. MA 7669/2008 entitled Dalbir Singh Vs BSES Rajdhani Power Limited held that :
''Section 154 (1) mandates that every offence punishable under sections 135 to 140 & section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. Considering the fact that Section 154 (3) the Special Courts are expected to proceed with the trial of the complaints under sections 135 to 140 & Section 150 in a summary way, it is inconceivable that the Parliament intended that the cognizance of the offence should first be taken by the learned MM and thereafter the case committed to the Special Court. Further Section 155 begins with the words ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC. Therefore, on a collective reading of Section 135, 151, 154 (3) and 155 it is plain that as regards the trial of the complaint case under the Act, the intention of the Parliament is that it is the Special Court will take cognizance of the offences and proceed to try the case, to begin with, in a summary way.''
7 Further, it is to be considered whether the special electricity court is required to give reasons for proceeding with the trial in a summary way. Section 154 (3) reads as under :
5
''The Special Court may, notwithstanding anything contained in sub section (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this sub section, it appears to the Special court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re hear the case in the manner provided by the provisions of the said code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.'' In this regard, the Hon'ble High Court of Delhi in the case Dalbir Singh (Supra) further held that :
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, attracting the offence under section 135 to 140 and section 150 of the Act, should be tried, to start with, in a summary way. Since the substantive portion of the above provision itself empowers the Special Court in this regard, it is unnecessary for the Special Court to give reasons for trying the case in a summary way. The procedure under section 154 (3) is indeed a departure from the procedure of trial of warrant cases under the Cr.PC Section 154 (3) contains a nonobstante clause which indicates that it is a departure from the normal procedure. Even Section 155 of the Act which otherwise makes the entire Cr.PC applicable, begins with the words ''save as otherwise provided in this Act.''
8 After taking cognizance of the offence on the complaint, the accused namely Tohfa Ram @ Bhalu was summoned to face the present complaint case. The notice u/sec. 251 Cr.P.C. was framed against the accused Tohfa 6 Ram @ Bhalu, however, the accused pleaded not guilty and claimed trial. In this regard, I would refer the case of Sanghi Brothers (Indore) P. Ltd. Vs Sanjay ChaudharyI (2009) SLT 144, it was held by the Hon'ble Supreme Court of India that ''strong suspicion about commission of offence and involvement of accused is sufficient to frame charge.'' The statement of the accused Tohfa Ram @ Bhalu was recorded u/sec. 313 Cr.P.C. In this context, I would refer the judgment delivered in the case of Chander Dev Rai Vs State (NCT of Delhi) 156 (2009) DLT 229 (DB), it was held by the Hon'ble High Court of Delhi that ''Examination of accused u/sec. 313 Cr.P.C is not a mere formality. Answers given by him have practical utility for criminal courts. Apart from affording an opportunity to the accused to examine incriminating circumstances against him also help the court in appreciating the entire evidence adduced in the court during the trial.'' 9 Admittedly, the accused is now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against him. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then circumstances so proved must form the complete chain so as to be not consistent with the innocence of accused. In this context, a reliance can be had upon the judgment passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that:
'' There is no predetermined way of proving any fact. The fact is said to have been proved where after considering the matter before it the court either believes it to exist or considers its existence so probable that a 7 prudent man ought, under the circumstances of the particular case, to act upon the specification that it exists.'' In the case of Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay AIR 1961 Supreme Court 1316, it was held that :
''...The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....'' In the case of M/s Sodhi Transport Co. and another Vs. State of U.P. and another reported as AIR 1986 Supreme Court 1099, it was held by the Hon'ble Supreme Court of India that :
''A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.''
10 Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh.Binay Kumar, Legal Officer being an authorized representative (hereinafter referred to as 'AR') of the complainant company entered into witness box and examined himself as PW2. PW2, during examination in chief, deposed that he is working with the complainant company i.e. BSES Rajdhani Power Ltd. as Officer Legal. He has been authorised by the complainant to file and pursue the cases on behalf of the complainant company in the special court including the present case. He has been authorised to do so by letter of authority dated 23.10.2006 by Sh.Lalit Jalan, Chief Executive Officer of the complainant company in the capacity of Manager U/sec. 2 (24) of the company's Act. The letter of authority exhibited 8 as Ex.CW1/1(OSR). PW2 further deposed that he has filed the present complaint case as per the record provided by the complainant company which is true and correct as per the said record and already exhibited as Ex.CW1/2 bearing his signature at point already marked A. PW2 also deposed that he has no personal knowledge of the facts of the case and has deposed as per record provided by the complainant company. Perusal of Ex.CW1/1 dated 23.10.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorized Binay Kumar, legal officer to institute and/or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written statements, petitions of claims, objections, memorandum of appeal & petition and application of all kinds and to file them in any such courts or office apart from other authorisation as mentioned in the said document Ex.CW1/1. The complainant is rendering services for distribution of electricity to the public and all the complaint cases by the company are being filed through the authorised representatives on its behalf. Whereas, despite opportunity given, the counsel for the accused did not crossexamine PW2. Even otherwise, the accused has not led any evidence and failed to prove that the AR has not been authorised by the complainant company to file the present complaint case. Thus, I hold that Binay Kumar, AR of the complainant company is duly authorised and competent to file the present complaint case on behalf of the complainant company.
11 Now, let us secondly examine whether members of the inspection team were the authorised officers of the complainant company to carry out 9 inspection at the premises in question on 22.06.2007. Mohd. Ameen - Trainee Engineer examined himself as PW1 and deposed that on 22.06.2007 at about 12 Noon, he alongwith Sh. Maneesh Arora, the then Enforcement Manager, Sh. Prasanjeet Ghatak - Assistant Manager, Ombir Singh - TE, Surender Singh - Trainee Engineer and photographer from M/s. Arora Photo Studio along with Delhi Police and CISF officers visited premises bearing No. 13 A, Jogi Mohalla, Tehkhand Village, Near Railway Line, New Delhi. Sh. Manish Arora - DGM Enforcement who also examined himself as PW3 deposed that on 22.06.2007 at around 12:00 Noon, he along with Sh. Prasanjeet Ghatak - Assistant Manager, Sh. Ombir Singh - Trainee Engineer, Sh. Mohd. Amin - Trainee Engineer, Sh. Surender Chauhan - Trainee Engineer, Sh. Sunil Kumar - Line man, Sh. Vijay - videographer from Arora Photo Studio, CISF and Delhi Police personnel inspected the premises bearing H. No.13A, Jogi Mohalla, Village Tehkhand, Near Railway Line, New Delhi. Copy of the notification No.F11(93)/2003/ power/1566 dt. 17.05.2005 filed by the complainant reveals that in exercise of the powers conferred by subsection (2) of section 135 of the Electricity Act, 2003 (36 of 2003) read with Govt. of India, Ministry of Home Affairs, Notification No. F.No.U11030/2/2003/UTL dt. 20.02.2004, the Lt. Governor of National Capital Territory of Delhi has authorised the technical officers, not below the rank of Assistant Engineer/Assistant Manager and above, in the departments dealing with distribution (District/ Zones) commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of section 135 of the said Act in respective areas of the said companies in the 10 National Capital Territory of Delhi. In view of the above notification and foregoing discussions, I hold that Sh. Maneesh Arora, the then Enforcement Manager, was the 'Authorised Officer' to carry out the inspection of premises in question under the provisions of section 135 of the Act on 22.06.2007.
12 What aspects and evidence have to be considered and examined for ascertaining mode of theft of electricity. Here, I would place a reliance upon the judgment dated 23.10.2007 passed by the Hon'ble High Court of Delhi in Crl. Appeal No.531/2007 entitled Mukesh Rastogi Vs North Delhi Power Limited, it was held that even if the inspection was not a valid inspection, complainant had a right to prove theft of electricity done by the appellant irrespective of the status of the inspection. The invalid inspection does not make theft of electricity as a noncrime. Theft of electricity remains the crime irrespective of fact that the inspection is valid or not. Supreme Court in State & ors. Vs. N.M.T.Joy Immaculate 2004 (5) SSC 729 observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr.P.C. or any other law excludes relevant evidence on the ground that it was obtained under an illegal search of seizure. Even if the inspection was not conducted by an officer as designated under the notification dated 31st March, 2004, the members of the inspection team, who had visited the site and found the electricity being stolen are competent witnesses to depose in the court about the theft of electricity and the manner in which electricity was being stolen. It was further held that tapping of electricity could be seen standing outside the buildings since wires going on LT main to the building 11 through a window could be seen. The photographs of the spot were taken by the photographer showing wires going from LT main to the window, from window to meter place then to cut out and from cut out to the house and business place of the appellant. The visit of the enforcement staff proved by the defence witnesses themselves who stated that persons from electricity department did come on that day and the appellant was at the spot at that time. It is his own case that members of NDPL visited the house on that day, thus, the inspection of the premises by enforcement staff of the NDPL and the photographs showing his premises cannot be doubted. 13 It was also held by the Hon'ble High court in the aforesaid case that in all cases of theft of electricity, the stolen material is simultaneously consumed by the person involved in theft. Electricity is not such a material which can be kept stored for future use. In normal cases, theft of articles case property is understood by the stolen material. In excise cases, the case property is liquor seized, in case of NDPS the case property is the narcotics drugs seized. In that sence, in case of theft of electricity there can be no case property as such, since the stolen property i.e. electricity is simultaneously consumed. The enforcement staff therefore seizes the material through which the theft is committed. Mere non production on the wires cannot fail the prosecution, if the theft of electricity is proved by cogent evidence otherwise. It must be kept in mind that complaint is filed by NDPL which is basically a distribution company. The officials working in enforcement department are not trained in investigation and since this is new job for them, it may take some time for them to learn the technicalities of investigation. Merely because there is lapse on the part of the complainant 12 company not to retain or not to produce the wires in the court through which the electricity was being stolen cannot fail the case if it is sufficiently proved by other evidences that electricity was being stolen by hooking wires directly to LT main. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the court by cogent evidence, therefore, the validity of the inspection report cannot be attached too much of importance. Similarly, non production of the single core PVC wires through which electricity was being stolen is not a serious infirmity in this case since there is sufficient oral testimony supported by photographs showing the theft of electricity. 14 The issue involved in the present criminal complaint case is on the point of detection of theft of electricity which is the crucial aspect. Let us finally examine whether the accused Tohfa Ram @ Bhalu had committed the 13 offence u/sec. 135 of the Act at the premises in question 22.06.2007. It is well settled principle that prosecution has to prove its case against the accused beyond reasonable doubt. The complainant through its witnesses has tried to prove the case against the accused that the accused was committing direct theft of electricity at the premises in question. PW1 in his examination in chief deposed that they found that a single phase electro mechanical meter was installed there for supply of electricity. However, the electricity was being illegally used by directly tapping from the LV mains of the complainant connected to the said premises. There was a connected load of about 8 KW for domestic purposes and 2.8 KW approximately for commercial purpose which was connected through the above said illegal tapping. The connected load for domestic purposes included two heaters of 2000 watt each, tubelights of 40 watts each, 10 bulbs of 60 watts each, two water motors of one horse power and half horse power respectively, two coolers of 250 watts each etc. The commercial load included 6 sewing machines of 180 watts each, one water motor of one horse power, 4 ceiling fans of 60 watts, bulbs, tubelights, etc. The details of the connected load for domestic as well as commercial purpose was noted by the team members in the load report prepared at the spot. The said load report already exhibited as Ex.CW2/2 bears his signature at point already mark A. The team members including PW1 found that accused Ramji Lal, Tohfa Ram, Shiv Dayal and Bhalu were the users of the said premises. They met accused Ramji Lal and accused Tohfa Ram at the spot and other accused were not there and their names were told to the team members by other persons and accused present on the spot. During examination in chief, PW1 correctly pointed out towards accused Tohfa Ram and accused Ramji Lal as the said accused 14 persons who met them at the spot and who were using the said premises. Details of inspection were recorded by the team members in inspection report preapred at the spot. The said inspection report including meter report already marked as Ex.CW2/1 which bears his signature at point already mark A. The team members including PW1 seized black coloured two core wire of size 8 MM SQ. and approximate 6 mtr. in length, two pieces of blue coloured copper wire of length one mtr. and two pieces of white coloured copper wire of length half meter and single phase electro mechanical meter which was being bypassed vide seizure memo prepared at the spot. The said seizure memo already marked Ex.CW2/3. PW1 further deposed that they got conducted videography at the spot from photographer of M/s. Arora Photo Studio and the CD containing the said videography is already marked Ex.CW2/5. PW1 also deposed that they offered the reports prepared at the spot to the users at the spot but they refused to sign and receive the same. The sealed material was seized in a bag with the seal of Manager Maneesh Arora. One sealed plastic bag sealed with the illegible seal was opened. The parcel contained torn carbon copy of the seizure memo Ex.CW2/3 which was exhibited as Ex.P1 during examination in chief of PW1, one electro mechanical meter with dial No.0836206 Ex.P2, a black coloured two core wire of approximate length 6 mtr marked Ex.P3, two blue coloured copper wires marked Ex.P4 and Ex.P5 and two white coloured copper wires marked Ex.P6 and Ex.P7. PW1 pointed out that this was the same seized material which was seized by the team members at the spot and through these illegal wires the accused were committing direct theft of electricity from the LV mains by bypassing the above said electro mechanical meter.
1515 PW3 in his examination in chief also deposed that the team members found that there was an old mechanical meter installed at the spot, for supply of electricity of the said premises. On further checking, the team members found that the input and output of the said meter were disconnected. PW3 further deposed that they asked from the consumer to show any electricity bill pertaining to the said meter but the consumer did not show any record to them. However, the accused were found using the electricity illegally by directly tapping from the service line of the complainant with the aid of illegal wires which was further connected to the load of the said premises. There was total connected load approx. 8 KW and 3 KW which was running/ connected through the stolen energy by the accused persons for domestic and commercial purposes respectively. The domestic load comprised of cooking heaters, fans, water pumps, television, refrigerators, etc and the commercial load comprised of sewing machines, fans, lights etc. the details of the total connected load were mentioned in the load report which was prepared by the team members at the spot. The said load report was already exhibited as Ex.CW2/2. The details of the inspection were also noted in the inspection report which was also prepared at the spot and the same was already exhibited as Ex.CW2/1. PW3 also deposed that the team members also got conducted videography of the inpsected premises by photograper/ videographer from Arora Photo Studio. The CD containing the said videography was already exhibited as Ex.CW2/5. The said premises was being used by the accused Ramji Lal, Tohfa Ram and the name of other accused, PW3 deposed that he does not recollect on that day but the same were mentioned in the inspection report as well as on the 16 load report. The accused Ramji Lal and Tohfa Ram were present at the spot during the inspection. PW3 correctly pointed out towards the accused Tohfa Ram who was present in the court as one of the users of the said premises. The team members including PW3 also seized the old mechanical meter and some illegal wires from the spot vide seizure memo prepared at the spot. The said seizure memo already exhibited as Ex.CW2/3, which bears signature of PW3 at point A. PW3 further deposed that he can identify the case property if shown to him. One, sealed plastic bag with the seal of court (torn condition) was produced and opened which contained one electro mechanical meter with reading 18286 KWH and exhibited as Ex.PW3/1. One black colour aluminium two core wire of size 8 sq. mm and 06 meters approx. in length, one single core copper wire of size 3/22 SWG blue in colour one meter in length and one single core copper wire of size 3/22 SWG white in colour 1 ½ meter in length was exhibited as Ex.P2. 16 The accused stated at the time of framing of notice u/sec. 251 Cr.P.C. that he was not residing at 13 A, Jogi Mohalla, Tehkhand Village, New Delhi on the date of alleged raid or before or after. The accused further stated that his place of residence is 144, Jogi Mohalla, Tehkhand village, Okhla PhaseII, New Delhi. He does not have any concern with theft of electricity. The accused also stated at the time of statement u/sec. 313 Cr.P.C. that he is neither the owner nor the user of the premises in question. Therefore, he was not present at site on the date of inspection and he does not know if any inspection was carried out at the premises on 22.06.2007. The accused further stated that he was not committing any theft of electricity at the premises in question on the date of inspection. False and fabricated load 17 report has been prepared against him. The accused also stated that the reports i.e. inspection report Ex.CW2/1, load report Ex.CW2/2, seizure memo Ex.CW2/3 and CD of videography Ex.CW2/6(due to typographical mistake, it was typed as Ex.CW2/6 instead of Ex.CW2/5) are not concerned with his premises and he is not the owner and user of the premises in question, therefore, he does not know if any reports and videography were prepared at site on the date of inspection. DW1 in his examination in chief deposed that he knows the accused Tohfa Ram for the last ten years. The accused is residing at H.No.144, Teh Khand Village, OkhlaI, New Delhi. DW1 produced the election identity card vide its No. SJL0797969 and exhibited it as Ex.DW1/A. The accused Tohfa Ram does not reside at any ohter place except the one which DW1 stated above. The premises bearing No.13A belongs to his father Sh.Ramji Lal. The said premises was in possession and use of his father Sh.Ramji Lal and one tenant. DW1 deposed that even in the year 2006, the father of Tohfa Ram namely Sh. Ramji Lal was using the premises bearing No.13 A. The accused Tohfa Ram is not having any concern with the premises No.13 A. DW1 also deposed that the present case has been framed falsely against the accused Tohfa Ram. Tohfa Ram did not use the premises bearing No.13A, Jogi Mohalla, Teh Khand village, New Delhi and nor committed any theft of electricity at any point of time. 17 In the present case, the inspection in the premises in question was carried on 22.06.2007. In inspection report Ex. CW2/1, the name of the user is mentioned as Ramji Lal, Tohfa Ram, Shiv Dayal, Bhalu. Supply address is mentioned as H.No.13A, Jogi Mohalla, Tehkhand village, Near Railway Line. The names of the inspection team members are mentioned as Sh. Ombir 18 Singh - Trainee Engineer, Sh. Surender Singh - Trainee Engineer, Sh. Prasanjit Ghatak - Assistant Manager and Sh. Mohd. Amin - Trainee Engineer. Sh. Prasanjit Ghatak - Asssistant Manager is stated to be the inspection team leader and trade description (nature of works) found at site mentioned as domestic. It is stated in the inspection report Ex.CW2/1 that as per directions of manager Enforcement and along with Manager Enforcement and D.P. Staff from Okhla Police Station and CISF staff a joint team comprising of officials/ officers visited the above said premises for inspection purpose. 1 The consumer is found indulging in direct theft of electricity by bypassing the meter. Meter No.N.V. and dial No. 0836206 Reading 18286.6 KWH Rating 1020 of electromechanical meter found installed but meter found disconnected (No incomming and outgoing supply) at the time of inspection. The total load is running directly. Hence it is a case of direct theft. 2 All the connected load assessed vide L.R. No. AG03 2794 and meter report prepared vide MR No. AG 01 - 3135. 3 Necessary photographs and videography has been taken at site. 4 Illegal material and meter has been removed at site by joint team as per seizure memo. The diagram was also prepared by the team members on page no.3 of the aforesaid inspection report Ex.CW2/1 to show the mode of theft of electricity at the premises in question on 22.06.2007. As per the inspection report (meter details) Ex.CW2/1, meter was found bypassed. Load report Ex.CW2/2 reveals the details of the appliances and items used at site on the date of inspection. Ex.CW2/3 is the seizure memo which reveals the details of the illegal wires and meter seized from the site on the date of inspection. Ex.CW2/4 is the assessment bill for theft of electricity. Ex. CW2/5 is the CD of videography prepared at site. Upon filing of this complaint, cognizance of 19 the offence punishable u/sec135 of the Act was taken and complainant was allowed to lead presummoning evidence. The complainant led pre summoning evidence by way of affidavits. CW1 is the authorised representative who proved his complaint as Ex.CW1/2 and CW2 is the member of raiding team who proved the inspection report, inspection report (meter details), load report, seizure memo, assessment bill and CD Ex.CW2/1 to Ex.CW2/5. After presummoning evidence and pre summoning order, summons issued to the accused but summons not served. Thereafter, B/Ws and NBWs were also issued. The accused Tohfa Ram @ Bhalu appeared, he was taken into custody, however, released on bail on the next day by the Ld. Predecessor Court.
18 It is an admitted case of the accused Tohfa Ram @ Bhalu that he was neither the owner nor user of the premises in question bearing H.No.13A, Jogi Mohalla Tehkhand village, near railway line, New Delhi on the date of inspection i.e. 22.06.2007. Even he was not present at site on the date of insepction. DW1 in his examinatiion in chief deposed that he knows the accused Tohfa Ram for the last 10 years. The accused Tohfa Ram is residing at H.No.144, Tehkhand Village, OkhlaI, New Delhi and the accused has no concerned with the premises in question i.e. H.No.13A, Jogi Mohalla Tehkhand village, near railway line, New Delhi. DW1 proved the election card as DW1/A which reveals that it was issued on 26.10.2008 in the name of Tohfa Ram S/o Ramji Lal for the address 144, Tehkhand Village, Okhla Phase I, New Delhi110020. The inspection of the premises bearing H.No.13A, Jogi Mohalla Tehkhand village, near railway line, New Delhi was carried out on 22.06.2007, meaning thereby, the election Card Ex.DW1/A was issued much 20 after i.e. more than one year after the date of inspection which shows that it was not issued at the relevant time when the inspection was carried out. Therefore, Ex.DW1/A cannot be considered for determination that the accused was using the premises bearing no.144, Tehkhand village OkhlaI, New Delhi on 22.06.2007. On the one hand, DW1 has categorically deposed in his cross examination that the premises in question was used by Sh.Ramji Lal father of the accused Tohfa Ram and DW1 is residing at a distance of 100 meters from the premises in question and further came to know upon the inspection two or three days later from the date of inspection. On the other hand, DW1 deposed in his cross examination that he cannot say whether the meter is installed or not at the premises in question. If DW1 is friend of the accused Tohfa Ram for the last 10 years and he is well aware that the premises in question was in possession and use of his father Ramji Lal and one tenant then it is strange that he is not aware about the meter is installed or not at the premises in question, reasons are best known to him. The accused neither filed nor proved on record any document i.e. his or his family members ownership documents, electricity bill, telephone bill, if any, house tax, PAN card, gas connection, if any, ration card for the relevant period when the inspection was carried out which could have shown that the accused was residing and using the H.No.144, Tehkhand village, OkhlaI, New Delhi on 22.06.2007. Therefore, the accused has miserably failed to prove that he was using the H.No.144, Tehkhand village, OkhlaI, New Delhi on 22.06.2007.
19 Whereas, the aforesaid inspection reports reveals that the accused Tohfa Ram, Bhalu was found as user of the premises in question. Moreover, 21 PW1 & PW3 categorically deposed in their examination in chief that the accused Tohfa Ram was present at site on the date of inspection and PW1 & PW3 correctly identified Tohfa Ram present in the court that he was the same person found present at the premises in question on the date of inspection. Further, the witnesses PW1 has also proved on record the old mechanical meter and the illegal wires Ex.P2 to Ex.P7 which were seized by them from the premises in question on the date of insepction. PW3 also proved on record the aforesaid meters and the illegal wires. PW1, in his cross examination, deposed that the documents were prepared at site but the accused refused to sign the documents. PW1 denied the suggestion that they never visited to the premises in question. PW1 also denied the suggestion that the accused person does not have any concern with the raided premises i.e. 13A, Jogi Mohalla Village Tehkhand, Okhla, New Delhi as he is the resident of 144, village Tehkhand, Okhla, New Delhi. PW3 also denied the suggestion in his cross examination that the accused Tohfa Ram is not having any concern with the premises in question. As per the inspection reports, the DVB meter was bypassed. The testimony of the raiding team members is categorically on the point of detection of theft which has been focussed and covered in the CD of videography Ex.CW2/5 which clearly shows the DVB meter, raiding team members along with police officials and how the illegal wire is bypassed the meter for direct consumption of the electricity at the premises in question. The items/ appliances used at the time of inspection have also been focussed in the CD of videography Ex.CW2/5. Therefore, I have found from the testimony of PW1 to PW3 that the testimony of PW1 to PW3 has the credibility and the complaint also corroborated by the testimony of PW1 to PW3. The accused 22 Tohfa Ram @ Bhalu has miserably failed to prove that he was neither having any concern with the premises in question nor committing direct theft of electricity at the premises in question i.e. 13A, Jogi Mohalla, Tehkhand village, Near Railway line, New Delhi on 22.06.2007. Thus, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses examined as PW1 to PW3 on the point of direct theft of electricity. In BSES Rajdhani Power Ltd. Vs Saurashtra Color Tones Pvt. Ltd. and Anr. 161 (2009) DLT 28 (FB), it was held by the Hon'ble High Court of Delhi that ''Electricity is a public property. Law in its majesty benignly protects public property and behoves everyone to respect public property.'' 20 For the foregoing reasons discussed above in details, to my considered opinion, the circumstances and evidence proved by the complainant company established the involvement of the accused in the offence of direct theft of electricity. The complainant has proved its case against the accused beyond reasonable doubt. The present complaint case is squarely covered within the provisions of section 135 of the Act and also the aforesaid judgment in the case of Mukesh Rastogi (Supra). Thus, I convict the accused Tohfa Ram @ Bhalu u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 28.07.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
23
CC No. 764/07
28.07.2011
Present AR for the complainant
Sh. Vinod Kumar, proxy counsel for
Sh. S.Satya Narayana, counsel for accused with
accused in person
Vide separate judgment of the day, the accused Tohfa Ram @ Bhalu is convicted u/sec. 135 of the Electricity Act, 2003. The copy of the judgment be made available to the complainant and the convict immediately.
Upon request, to come up for arguments on the point of the sentence and determination of civil liability on 04.08.2011.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 28.07.2011